CONSOLE GAMES ADAPTED TO PLAY ON A PC - LAWFUL OR PIRACY?
Writing by GuardDog on Sunday, 8 of June , 2008 at 11:24 am
We all know about ROMs. They are old popular console games that are downloaded to play on a PC program called an emulator. These are usually binary code originally stored in read only memory (cartridge games etc), but they also can also come as image files of old disks in obsolete formats. Of course, your normal computer cannot read the original roms without a special adapter. That is basically the role of emulators: specially written programs to imitate (emulate) the functioning of the original console. This allows nostalgic gamers to play the old titles, without the help of the console, sometimes out of market. This is while the whole issue of the vendor’s EULA (End User License Agreement) comes in: * Is it violating copyright law when a game addict downloads onto his pc old roms, say the Super Mario original game, written to play on the original gameboy console?
The game vendors EULA falls within the provision of copyright law, 17 USC 106: “Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following … (emphasis added - ed.) * 2) to prepare derivative works based upon the copyrighted work etc.”
This is exactly the position of console vendors such as Sony or Nintendo, who totally prohibit the copying and storing of “derivative works”, including ROMs.
Changing the format from the original cartridge to a pc format therefore violates the vendor’s rights to prepare derivative works under 17 USC 106.2.
But, but, but, this right is not absolute: the act says “Subject to sections 107 through 120 …”. The vendor’s right to his product is limited. That is in fact why Nintendo and Sony have to come up with a EULA that completely prohibit the copying and storing of their titles onto another format than the original.
Obviously some forms of “derivative work” are not only acceptable under the act, but in some cases essential for the intended use of the program in question. We mention here a Microsoft windows installation Cd that has to be installed onto your pc (basically copied). COMING BACK TO ROMs… Which takes us back to the question: how can nostalgic gamers find legitimate ways to copy and store old unplayable games onto their pc? There are many theories: 1. the backup theory 2. public fair use 3. development purposes 4. Operational adaptation etc.
But these are old defenses that hardly stand scrutiny given that most ROMs these days are downloaded off the internet and do not exactly fall into the ambit of defenses 1, 3 and 4.
Remains defense 2, public fair use. In the supreme court case, Sony Vs Betamax, it was argued that personal use, no commercial use constituted a legitimate defense to reproduce copyrighted material. To quote from the judgment, “Any individual may reproduce a copyrighted work for a “fair use;” the copyright owner does not possess the exclusive right to such a use.” This basically means that as long as your roms are copied and stored for personal use - meaning with no commercial intention. The full article can be found at http://www.roms.co.za
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